But, common law is common law. If the privilege is invoked, courts get bound by precedent. Regardless of what the personal opinions of the judge may be.
It's also an impediment to democracy as it prevents an informed public. Not to mention that the interests of the state and the nation usually aren't aligned. Things like "state secret" imply that the power balance between the state and nation are skewed. But that always inevitably happens as the state gains more and more power.
Well, we need state secrets and we only really hear of their invocation when its in the news. Theres a podcast[0] I used to listen to with some frequency about the cases the lawyers working in Canada's intelligence services have to handle and how they balance the need for a democratic society with the rule of law, an needing to keep some things secret. I came away with the feeling that it's not all bad. We hear about some misuses, but I don't think it's mostly corruption.
In general the check here is the Legislative branch, where select members have access to classified data and can exert corrective pressure on the Executive.
Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries.
The legislative branch [ie: the people writing the laws] are the "check" on... the people writing the unconstitutional laws?
The courts must have the authority to review these cases, anything else is completely incoherent.
> Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries.
If foreign adversaries are trying to overturn illegal domestic dragnet surveillance, maybe I should be paying my taxes to them.
Yeah, except it turns out that the surveillance agencies are spying on congress and lying during testimony. Not exactly a good sign if we’re going to count on congress to reign in the NSA.
Security and freedom always have to be traded off against each other. The U.S. likes to portray itself as a country that errs on the side of freedom, but that self-image seems to be more and more at odds with reality. Alas.
Trying to litigate a matter of national intelligence through the courts is the wrong approach to use. The government has nearly unlimited powers in matters of national security, which includes the collection of intelligence. The right approach for those who believe to have standing is to write to your congressman or senator, especially if they sit on the House or the Senate Intelligence committees. Or, better, to run for office yourself. The latter advice applies to a host of other issues.
If you want to save the environment, do not study environmental science. Study politics, and become a politician, at the local, state, or federal level. Gain some hard political power to make or break laws and policies.
If you care about voting rights, do not become an activist. Become a politician, and marshal support for a bill.
If you care about government surveillance, do not try to fix the problem through your lawyer. Become a member of Congress and marshal support for a bill.
We want to have our cake and eat it. To solve the problems of society without making sacrifices. To go home at 6pm and tell the wife that you won in court against the government, have successfully nullified the government's surveillance powers, go to bed at 10, and go to work in the morning. Rather than leave your field to run for office, and possibly make a permanent career change. How many software engineers on this forum would consider becoming full time politicians for the remainder of their career and leave the tech field entirely? Few. Because as much as we like to write walls of text about the issues we pretend to be passionate about, few of us consider these problems to be little more than fictional annoyances that we don't seriously, really care about enough to make personal sacrifices to change. /rant
> "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
To which, of course, Clapper answered, under oath,
> "No, sir."
And then, later, as the article recounts:
> Upstream's existence was revealed in leaks by former NSA contractor Edward Snowden in 2013 and the lawsuit was filed in the aftermath of those revelations.
Or as Snowden puts it:
> "seeing the Director of National Intelligence, James Clapper, directly lie under oath to Congress"
The legislative branch cannot check the executive branch if the executive branch simply lies when asked "are you violating the Constitution?". I have no idea why Feinstein herself (as then chair of the Senate Intelligence Committee) doesn't laud Snowden as a hero for revealing the truth: that the committee she chaired got lied to. I have no idea why California continues to re-elect her, beyond they see "Democrat" and vote. Choose a different democrat.
At the risk of sounding defeatist, I don't think this strategy works. It's a static view of what is a dynamic system with strong feedback loops. Feedback loops that all but ensure one of the following outcomes:
- You succeed in becoming a politician with the power you need, but in the process you either no longer care about your original goal, or are bound by enough deals with other people that you can't do anything about your goal.
- You succeed in becoming a politician, but you get marginalized because your co-workers realize you can't be trusted to play along.
- You fail at becoming a politician, because your co-workers realize you won't play along, and ensure you never get anywhere close to any power.
The way I see it, the whole system has evolved to protect itself from changes that hurt its participants.
The sacrifice element is key. To quote Douglas Adams,
“The major problem—one of the major problems, for there are several—one of the many major problems with governing people is that of whom you get to do it; or rather of who manages to get people to let them do it to them.
To summarize: it is a well-known fact that those people who must want to rule people are, ipso facto, those least suited to do it.
To summarize the summary: anyone who is capable of getting themselves made President should on no account be allowed to do the job.
To summarize the summary of the summary: people are a problem.
And so this is the situation we find: a succession of Galactic Presidents who so much enjoy the fun and palaver of being in power that they very rarely notice that they’re not. And somewhere in the shadows behind them—who? Who can possibly rule if no one who wants to do it can be allowed to?”
I thought that our representative system existed exactly so we don't all need to become politicians or have to vote on every issue through direct democracy.
There is hope for software engineers working together to improve access to information instead of, argh, becoming all politicians. That also would be to the detriment of the entire human race which wouldn't have as many software engineers.
But, if you actually want to change the country, you must first go into finance or otherwise accumulate the wealth and influence needed to "corrupt" enough legislators into abolishing the current campaign financing and lobbying rules, so that all those whom you exhort might actually have a chance of winning office. Note this also immediately removes your source of power (not something people often do voluntarily).
I really don't see an obvious way to change things from within the system. I hope there is, otherwise we get either unending corporate feudalism or revolution.
Don't know why you were immediately down-voted, litigation is the wrong approach to use, since the litigation process is already captured by our national security cabal. I think many of us here writing walls of text plan to run for office, but do not have access to the kind of capital that it would take to actually have a chance
If you want to understand how to actually save the environment become an economist.
If you want the hypothetical power to save the environment but no ability to effectively do so become a politician.
If you want to save the environment, become a billionaire. They are the only ones with the power to move the needle in a way that isn't limited by bumper marketability to the media.
Translation - everyone who wants to have their rights respected must quit doing whatever they do and become a politician. And we of course would leave it to a career politicians to bake our bread, write software etc. etc.
If you care about an issue, any issue, the answer is to find like minded people and build or attend a meeting, a coalition, a movement, or some other form of solidarity between individuals to pursue it. Maybe that means you get elected, maybe it means candidates seek your support, but unless you have millions of dollars to donate, your biggest power is not as an individual, but as part of a group.
I think government should be permitted to say "National Security," but it should come along with a presumption that the evidence would have been adverse to the government's case just like spoliation, and the case should proceed, not a blanket get out of jail free card.
Why do you believe the (US) government be permitted to say "National Security" to excuse severe, widespread and continuous breaches of constitutional rights?
If the executive branch can classify things as sensitive to the national security, and there is a state secrets exception to trial, then how on Earth are the judiciary and executive on equal footing if the executive can simply cause a default outcome of any trial against it?
The programs in question here are also clearly not national security matters. They were made public, are illegal, and the security of the nation was not affected in any way.
It is more than just democracy - secrets are outright the antithesis of good service regardless of whom is served. Theranos kept secrets from its investors. Look at any other job - say a mechanic telling you not to look under your hood or an accountant telling you not to look at your account. That would rightfully raise massive suspicion of being out to screw you over.
Is my understanding correct that, essentially, you can violate people's constitutional rights and then if you're sued claim investigating the violation would be a national security threat and therefore you should continue to be allowed to violate people's rights without oversight?
Something similar is also being fought in Indian courts, where the government is on the hook for using the Pegasus spyware (bought from NSO) illegally. Indian laws permit lawful interception (wire-tapping etc), but do not allow hacking. As such, the government's usage of Pegasus was likely unconstitutional, and they are refusing to admit even the usage of Pegasus in court (or the existence of a contract with NSO).
The Government derives its power from the people. What is the penalty for the case where this information is found to simply be embarrassing and not a secret at all? None.
It should scare everyone in the country that you could go to prison and ruin your entire life for omitting information on tax forms etc but the Government can do far worse with with facts that the public needs to make an informed decision at the polls and get away with it.
> While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases." - John Dean https://en.wikipedia.org/wiki/John_Dean
> ...dismissed for lack of standing. In particular, the government argued that we had not provided sufficient evidence of the government’s surveillance for the case to proceed. It also claimed that the case could not proceed because it would require the Court to consider information the government claims is protected by the state secrets privilege. In other words, the government contended that the case cannot be litigated without disclosing information about Upstream surveillance that would harm U.S. national security—and, accordingly, in its view, the entire case must be dismissed.
The classic "you can't prove we did anything illegal, and if you did, that in itself would be illegal" defense. Fuck these people, seriously
It seems safe to me to assume that US government security is mostly to keep secrets from it's own citizens. Foreign intelligence agencies know about pretty much everything.
Democracies need to ensure the vote doesn't become too much of a danger to the established social order, the privileges of the property owning classes etc.
One of the mechanisms for this is secrecy; others are selective information disclosure, propaganda, cultural and religious signaling etc. And then there's more direct application of economic or physical pressure.
If these weren't in place and effective, well... I am reminded of the famous maxim:
> If voting could change anything, it would be illegal.
I first heard this from Jello Biafra, but apparently it has been attributed to Emma Goldman, Mark Twain and is probably even older than that.
Democracy has and always will exist in balance with secrecy.
In fact, the polarization we often decry is largely because of transparency. It's harder to nail someone to a cross on partisan radio if it's "the committee decided this" instead of "x voted y."
[+] [-] btilly|4 years ago|reply
State secrets have always been problematic. Take the very first case: https://en.wikipedia.org/wiki/United_States_v._Reynolds#Subs.... As was later discovered, the biggest secret was how much the government didn't want to be embarrassed.
But, common law is common law. If the privilege is invoked, courts get bound by precedent. Regardless of what the personal opinions of the judge may be.
[+] [-] simorley|4 years ago|reply
[+] [-] 3pt14159|4 years ago|reply
[0] https://www.intrepidpodcast.com/podcast
[+] [-] optimiz3|4 years ago|reply
Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries.
[+] [-] nickysielicki|4 years ago|reply
The courts must have the authority to review these cases, anything else is completely incoherent.
> Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries.
If foreign adversaries are trying to overturn illegal domestic dragnet surveillance, maybe I should be paying my taxes to them.
[+] [-] ashtonkem|4 years ago|reply
[+] [-] lisper|4 years ago|reply
[+] [-] HenryKissinger|4 years ago|reply
If you want to save the environment, do not study environmental science. Study politics, and become a politician, at the local, state, or federal level. Gain some hard political power to make or break laws and policies.
If you care about voting rights, do not become an activist. Become a politician, and marshal support for a bill.
If you care about government surveillance, do not try to fix the problem through your lawyer. Become a member of Congress and marshal support for a bill.
We want to have our cake and eat it. To solve the problems of society without making sacrifices. To go home at 6pm and tell the wife that you won in court against the government, have successfully nullified the government's surveillance powers, go to bed at 10, and go to work in the morning. Rather than leave your field to run for office, and possibly make a permanent career change. How many software engineers on this forum would consider becoming full time politicians for the remainder of their career and leave the tech field entirely? Few. Because as much as we like to write walls of text about the issues we pretend to be passionate about, few of us consider these problems to be little more than fictional annoyances that we don't seriously, really care about enough to make personal sacrifices to change. /rant
[+] [-] deathanatos|4 years ago|reply
> "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
To which, of course, Clapper answered, under oath,
> "No, sir."
And then, later, as the article recounts:
> Upstream's existence was revealed in leaks by former NSA contractor Edward Snowden in 2013 and the lawsuit was filed in the aftermath of those revelations.
Or as Snowden puts it:
> "seeing the Director of National Intelligence, James Clapper, directly lie under oath to Congress"
The legislative branch cannot check the executive branch if the executive branch simply lies when asked "are you violating the Constitution?". I have no idea why Feinstein herself (as then chair of the Senate Intelligence Committee) doesn't laud Snowden as a hero for revealing the truth: that the committee she chaired got lied to. I have no idea why California continues to re-elect her, beyond they see "Democrat" and vote. Choose a different democrat.
[+] [-] TeMPOraL|4 years ago|reply
- You succeed in becoming a politician with the power you need, but in the process you either no longer care about your original goal, or are bound by enough deals with other people that you can't do anything about your goal.
- You succeed in becoming a politician, but you get marginalized because your co-workers realize you can't be trusted to play along.
- You fail at becoming a politician, because your co-workers realize you won't play along, and ensure you never get anywhere close to any power.
The way I see it, the whole system has evolved to protect itself from changes that hurt its participants.
[+] [-] ziddoap|4 years ago|reply
What about the rest of the owl?
[+] [-] gorwell|4 years ago|reply
“The major problem—one of the major problems, for there are several—one of the many major problems with governing people is that of whom you get to do it; or rather of who manages to get people to let them do it to them.
To summarize: it is a well-known fact that those people who must want to rule people are, ipso facto, those least suited to do it.
To summarize the summary: anyone who is capable of getting themselves made President should on no account be allowed to do the job.
To summarize the summary of the summary: people are a problem. And so this is the situation we find: a succession of Galactic Presidents who so much enjoy the fun and palaver of being in power that they very rarely notice that they’re not. And somewhere in the shadows behind them—who? Who can possibly rule if no one who wants to do it can be allowed to?”
[+] [-] danielrpa|4 years ago|reply
There is hope for software engineers working together to improve access to information instead of, argh, becoming all politicians. That also would be to the detriment of the entire human race which wouldn't have as many software engineers.
[+] [-] nescioquid|4 years ago|reply
But, if you actually want to change the country, you must first go into finance or otherwise accumulate the wealth and influence needed to "corrupt" enough legislators into abolishing the current campaign financing and lobbying rules, so that all those whom you exhort might actually have a chance of winning office. Note this also immediately removes your source of power (not something people often do voluntarily).
I really don't see an obvious way to change things from within the system. I hope there is, otherwise we get either unending corporate feudalism or revolution.
[+] [-] waiseristy|4 years ago|reply
[+] [-] Consultant32452|4 years ago|reply
If you want the hypothetical power to save the environment but no ability to effectively do so become a politician.
If you want to save the environment, become a billionaire. They are the only ones with the power to move the needle in a way that isn't limited by bumper marketability to the media.
[+] [-] FpUser|4 years ago|reply
[+] [-] lsiebert|4 years ago|reply
[+] [-] unknown|4 years ago|reply
[deleted]
[+] [-] rmah|4 years ago|reply
[+] [-] Glyptodon|4 years ago|reply
[+] [-] einpoklum|4 years ago|reply
[+] [-] sneak|4 years ago|reply
The programs in question here are also clearly not national security matters. They were made public, are illegal, and the security of the nation was not affected in any way.
The whole house is built on a foundation of lies.
[+] [-] imwillofficial|4 years ago|reply
You cannot make an informed choice without transparency.
How this balances with things that actually need to be secret is the difficult part, but clearly, the US is failing to find that balance.
[+] [-] Nasrudith|4 years ago|reply
[+] [-] KittenInABox|4 years ago|reply
[+] [-] erellsworth|4 years ago|reply
[+] [-] ARandomerDude|4 years ago|reply
- Yes, Prime Minister
[+] [-] captn3m0|4 years ago|reply
The government is citing "national security" to avoid damage. A good legal summary is here: https://www.thehindu.com/opinion/lead/pegasus-is-indias-wate...
Latest: https://livelaw.in/top-stories/pegasus-supreme-court-reserve...
[+] [-] DisjointedHunt|4 years ago|reply
It should scare everyone in the country that you could go to prison and ruin your entire life for omitting information on tax forms etc but the Government can do far worse with with facts that the public needs to make an informed decision at the polls and get away with it.
[+] [-] gego|4 years ago|reply
[+] [-] xxpor|4 years ago|reply
[+] [-] ajay-b|4 years ago|reply
[+] [-] ghoward|4 years ago|reply
Kind of like this: https://www.youtube.com/watch?v=zWKxWR7rehw&t=5335s
[+] [-] erellsworth|4 years ago|reply
[+] [-] LatteLazy|4 years ago|reply
[+] [-] nickysielicki|4 years ago|reply
> While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases." - John Dean https://en.wikipedia.org/wiki/John_Dean
[+] [-] java-man|4 years ago|reply
[0] https://en.wikipedia.org/wiki/United_States_v._Reynolds
[+] [-] waiseristy|4 years ago|reply
The classic "you can't prove we did anything illegal, and if you did, that in itself would be illegal" defense. Fuck these people, seriously
[+] [-] Goety|4 years ago|reply
[+] [-] einpoklum|4 years ago|reply
Ah, hell, I can't make these Yakov Smirnoff jokes work any more. I guess that's when you know things are getting pretty bad.
[+] [-] autoliteInline|4 years ago|reply
[+] [-] unknown|4 years ago|reply
[deleted]
[+] [-] literallyaduck|4 years ago|reply
Democracy and secrecy are mutually exclusive.
We need you to vote on this issue but we will hide all the relevant facts.
[+] [-] einpoklum|4 years ago|reply
One of the mechanisms for this is secrecy; others are selective information disclosure, propaganda, cultural and religious signaling etc. And then there's more direct application of economic or physical pressure.
If these weren't in place and effective, well... I am reminded of the famous maxim:
> If voting could change anything, it would be illegal.
I first heard this from Jello Biafra, but apparently it has been attributed to Emma Goldman, Mark Twain and is probably even older than that.
[+] [-] ethbr0|4 years ago|reply
In fact, the polarization we often decry is largely because of transparency. It's harder to nail someone to a cross on partisan radio if it's "the committee decided this" instead of "x voted y."
[+] [-] ihusasmiiu|4 years ago|reply
[deleted]